In Depth

Working in a profession that prizes intellectual agility, lawyers can be especially sensitive to questions about their mental
faculties.

Legal professionals tend to tie their sense of self to their cognitive function. They think of themselves as being well-educated
problem-solvers who are trained to help others. Above all, they value intellectual stimulation.

However, the stressful sedentary lifestyle that typically accompanies a career in the law also puts lawyers at risk for cognitive
impairment. And while lawyers can be hurt when someone points out they have packed on a few pounds, they can be devastated
when a colleague tells them they are not fully comprehending their cases or their advice to clients is problematic.

To help attorneys who are concerned about the intellectual fitness of another lawyer or judge, the American Bar Association
has recently released a cognitive assessment tool. In 2008, the ABA’s Commission on Lawyer Assistance Programs created
what became the Senior Lawyer Committee, the group that led the work on developing the assessment instrument.

The “Working Paper on Cognitive Impairment and Cognitive Decline” is a questionnaire designed to give attorneys
guidance in determining whether a partner or friend is just having a bad month or is suffering from something more serious.
It also provides recommendations for talking to a colleague who is exhibiting troublesome behavior.

Harrell

“This is not a diagnostic tool,” explained Terry Harrell, executive director of the Indiana Judges and Lawyers
Assistance Program. “It’s a tool to determine

if you need to ask someone to have an evaluation” by a medical doctor.

Harrell assisted in the development of the cognitive questionnaire when she served as co-chair of the ABA CoLAP Senior Lawyer
Committee. She will become chair of the ABA Commission on Lawyer Assistance Programs in August.

The assessment tool was created in response to the rise in calls to lawyer assistance programs across the country from attorneys
concerned about colleagues’ cognitive fumbles.

Harrell noted inquires about mental acuity remain a small percentage of the calls that assistance programs receive. Problems
with depression and substance abuse far outpace cognitive impairments, but concerns about intellectual health are the fastest-growing
segment of all calls.

Across the United States, lawyer assistance programs reported a 14-percent increase in cognitive inquires between 2010 and
2012, Harrell said.

Normal aging or a symptom?

Tip-of-the-tongue moments become more common as people age. The instances where someone’s name does not quickly come
to mind or having to look a little longer for the car keys are the kinds of things that naturally happen when someone gets
older.

Even as their mental abilities slow, people can still remain active and do their jobs very well, said Dr. Ann Marie Hake,
associate professor of clinical neurology at Indiana University School of Medicine. The problem arises when those tip-of-the-tongue
moments become more persistent and more frequent that they interfere with normal activities.

Hake

Not recognizing family members, substituting the wrong word, getting lost near home and dramatic personality changes are
possible signs of cognitive

impairment, Harrell said.

The ABA’s cognitive assessment tool gives a picture of what is happening by having concerned colleagues put their observations
on paper. Writing down any shortcomings in job performance along with changes in appearance or behavior, Harrell said, enables
attorneys to better see how their partners and associates are functioning at the office.

Cognitive decline is not limited to senior citizens. Medical conditions, such as diabetes; prescription drugs; emotional
turmoil caused by family troubles or even lack of sleep can interfere with the efficient function of a young or middle-aged
lawyer’s brain.

Not the end of a career

Certainly, the practice of law can overwork a brain. Attorneys cannot control the pace of the work, so maybe one month they
have multiple hearings and briefings to prepare which forces them to forgo sleep and a healthy diet while the next month,
the list of things to do shrinks considerably.

“Part of the wear and tear of being a lawyer is that you have a variety of intense things to do that come on a regular,
irregular basis,” said Jim Roth, chair of the Indiana State Bar Association Senior Lawyers Section.

Ironically, Hake said, while certain parts of practicing law can put attorneys at risk for cognitive impairment, other parts
can diminish that risk.

Sitting all day, working in a high-pressure environment is not good for either the body or the brain, she said. But the high
level of education attorneys have plus the amount of intellectual stimulation they get during the day actually exercises the
brain in a good way.

Still, Roth questioned when slowing down cognitively becomes an impairment.

“What’s a problem?” he asked. “If you’re at 90-percent capacity of what you used to be, is
that a problem?”

He then voiced what is likely a common fear of being told to quit practicing law rather than being allowed to continue doing
what you love. He proposed instituting some type of mentor program that can help older attorneys do their work as lawyers.
Someone to assist with the workload or to bounce ideas off can provide the needed boost to enable an attorney to keep serving
clients.
Hake agreed, saying she is not an advocate of retirement. With individuals who do suffer from degenerative dementia, the
cognitive decline is usually gradual and with the proper medication and support, they can still contribute.

“These guys and gals have a lot of experience and a lot of knowledge,” Hake said. “Why put that to waste?”

Having a conversation

Doing the assessment is not easy. First the concerned attorney must identify the best people to speak with about the worrisome
colleague. Ideally, it should be people who work closely with the colleague and care enough about him or her to be honest
in their observations, Harrell said.

Second, the concerned attorney must have a conversation with the colleague.

Mike Long, attorney counselor with the Oregon Attorney Assistance Program, conceded talking to another attorney about his
or her mental decline can be tremendously uncomfortable. Compounding the situation is that lawyers usually do not have any
experience talking about cognitive problems, and questions about intellect can feel like a personal attack.

Long, who has counseled attorneys for more than 20 years, played a key role in developing the ABA cognitive assessment tool.

Although talking with a lawyer who shows signs of cognitive impairment is difficult, Long pointed out ignoring the problem
can have severe consequences. Clients can be hurt, the law firm could get slapped with a malpractice lawsuit and ethical issues
could sprout. All this could lead to the impaired attorney, who was once a well-respected member of the legal community, having
his or her career ended by a disciplinary action.

Long advised the conversation should be objective and detail what behaviors and work habits have been observed that are causing
concerns. Attorneys should be specific with the colleague, noting situations, for example, where appointments were forgotten
or court dates missed. Speculation and hearsay should be avoided.

The ABA working paper drew praise from Hake who said the committee did a good job describing the signs and symptoms of possible
impairment.

She also encouraged attorneys to be proactive and address any problems rather than dismissing them. The cause of a cognitive
impairment might be reversible, but it should be addressed early otherwise it might cause permanent damage. And, if the cause
is not reversible, attorneys can take steps to protect their clients and preserve their reputations.

“People shouldn’t be afraid to get checked out and help others get checked out,” Hake said.•

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Conversations

2 Comments

If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career,
pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere
near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally
finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of
any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment
at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years
ago.

I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced,
listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally
lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience
is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the
cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

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